In the case of Jolly P.G. v. Union of India and Others O.P. (CAT) No.

2301 OF 2011, The basis of

the relief granted to the petitioner was the operative part of the Uma Devi case (2006) 4 SCC 1.The respondent relied on majorly Satya Prakash & Ors vs State Of Bihar & Ors (2010) 4SCC 179 and State of Rajasthan v Daya Lal (2011) 2 SCC 429. As the respondent pleadedthat the petitioner was engaged as a mere casual employee who was employed irregularly andthere was no sanctioned post available for his appointment.Secretary, State of Karnataka v Uma Devi and others (2006) 4 SCC 1- The operative part isthe paragraph 44. One aspect needs to be clarified. There may be cases where irregularappointments (not illegal appointments) as explained in S.V. NARAYANAPPA (supra), R.N.NANJUNDAPPA (supra), and B.N. NAGARAJAN (supra), and referred to in paragraph 15above, of duly qualified persons in duly sanctioned vacant posts might have been made and theemployees have continued to work for ten years or more but without the intervention of orders ofcourts or of tribunals. The question of regularization of the services of such employees may haveto be considered on merits in the light of the principles settled by this Court in the cases abovereferred to and in the light of this judgment. In that context, the Union of India, the StateGovernments and their instrumentalities should take steps to regularize as a one time measure,the services of such irregularly appointed, who have worked for ten years or more in dulysanctioned posts but not under cover of orders of courts or of tribunals and should further ensurethat regular recruitments are undertaken to fill those vacant sanctioned posts that require to befilled up, in cases where temporary employees or daily wagers are being now employed. Theprocess must be set in motion within six months from this date. We also clarify thatregularization, if any already made, but not subjudice, need not be reopened based on thisjudgment, but there should be no further by-passing of the constitutional requirement andregularizing or making permanent, those not duly appointed as per the constitutional scheme.

Satya Prakash and others v State of Bihar and others (2010) 4 SCC 179- Referring to theUma Devi case, the court relied on the observation of the court and distinguished between Illegaland irregular employment."If the appointment itself is in infraction of the rules or if it is in violation of the provisions of theConstitution illegality cannot be regularized. Ratification or regularization is possible of an actwhich is within the power and province of the authority but there has been some noncompliance with procedure or manner which does not go to the root of the appointment.Regularization cannot be said to be a mode of recruitment."1"We have, therefore, to keep this distinction in mind and proceed on the basis that onlysomething that is irregular for want of compliance with one of the elements in the process of1 B.N. Nanjudappa vs. T. Thimmiah (1972)1 SCC 409 as cited in Uma Devi case.

selection which does not go to the root of the process, can be regularized and that it alone can beregularized and granting permanence of employment is a totally different concept and cannot beequated with regularization."2Paragraph 7-9 of the Satya Prakash case and Paragraph 12 of Daya Lal case state that there is adifference between irregularly engaged and illegally engaged without a sanctioned post. Thesecases amend the operative part of Uma Devi case. Read together, these maintain that a casualemployee given an unsanctioned post cannot claim the benefits of the Uma Devi Case.The cases pleaded by the petitioner and as considered by the court can also be countered.With reference to State of Karnataka v M.L. Kesari (2010) 9 SCC 247 on which the appellantrelied, the case itself recognizes the difference between irregular and illegal employment.The appointment of such employee should not be illegal, even if irregular. Where theappointments are not made or continued against sanctioned posts or where the persons appointeddo not possess the prescribed minimum qualifications, the appointments will be considered to beillegal. But where the person employed possessed the prescribed qualifications and was workingagainst sanctioned posts, but had been selected without undergoing the process of opencompetitive selection, such appointments are considered to be irregular.The later decision of State of Rajasthan v Daya Lal (2011) 2 SCC 429 is more legally relevantthan the 2010 decision. Though, there is no controversy between the two, as both maintain that incase of a person not being appointed against a sanctioned post, he will not be amenable to thebenefit of regularization.As for the Amarkant Rai v State of Bihar and others (2015) 8 SCC 265, it is made clear bythe court that the appellant though initially employed against an unsanctioned post was laterworking continuously against a sanctioned post since 3.1.2002. If it could be shown that theappellant was not hired or working against a sanctioned post, the case law cannot be applied tomake him amenable to the benefit of regularization.A similar situation arose in the case of Nihal Singh and Others v. State of Punjab and Others(2013) 14 SCC 65, the people claiming regularization were appointed as Special Police Officers.In this case, the court states that the employment of the offices cannot be said to be irregular. Theneed for the creation of the sanctioned post was overshadowed by the necessity of the act and thefailure of the state to do the same. Thus, the court allowed the appeals. This is not goodprecedent to the given case as there is a situation of an irregular and unsanctioned job createdwithout any necessity.With reference to State of Jharkhand and others v Kamal Prasad and others (2014) 7 SCC223, the argument can be made that they were appointed on temporary basis but the2 B N Nagarajan v State of Karnataka (1979) 4 SCC 507 as cited in Uma Devi Case.

advertisements by the government show that there were sanctioned posts available. However, inthe present case, there is no evidence of any sanctioned post available against which theappellant was working.